N.M. Supreme Court: Photographers Can't Refuse Gay Weddings

In a closely watched case on gay rights, religious freedom, artistic freedom, the speech rights of businesses, and a host of other legal hot button issues, the New Mexico Supreme Court today ruled that wedding photographers could not refuse to shoot gay ceremonies.

"When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act, or NMHRA] in the same way as if it had refused to photograph a wedding between people of different races," the court said in a unanimous verdict.

The court rejected each of photographer's Elaine Huguenin's arguments, particularly one in which Huguenin had argued that her refusal did not discriminate against same-sex customers. Huguenin had argued that she would happily photograph gay customers, but not in a context that seemed to endorse same-sex marriage. Likewise, she said, she wouldn't shoot heterosexuals in a context that endorsed same-sex marriage.

The court rejected any legal differentiation between homosexuality and homosexual conduct.

"The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct," wrote Justice Edward Chávez. "To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA."

In the court's view, saying you'll photograph gay people but not gay marriages would the same as a restaurant offering a full menu to male customers, refusing to serve entrees to women, and defending itself by saying women could order appetizers.

The court also rejected Huguenin's free speech argument, saying that the NMHRA does not compel speech. "They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws." Likewise, the court said, the law doesn't regulate the content of the photographs. "The NMHRA does not mandate that Elane Photography choose to take wedding pictures; that is the exclusive choice of Elane Photography."

But it is Justice Richard Bosson's concurring opinion, not the majority opinion, that is already getting the most attention. The Huguenins, he wrote "now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views."

He continued:

The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

In a press statement, Alliance Defending Freedom Senior Counsel Jordan Lorence, who represented Elane Photography in the case, said the decision was a step toward tyranny. "Government-coerced expression is a feature of dictatorships that has no place in a free country," he said. "This decision is a blow to our client and every American's right to live free."